ELR Citation: ELR 20537
No(s). 00-149-B-C (D. Me. Feb 19, 2002)

The court holds that a salmon farmer is liable under the Clean Water Act (CWA) for discharging pollutants without a national pollution discharge elimination system (NPDES) permit in Machias and Pleasant Bays off the coast of Maine. The court first holds that, based on the undisputed facts and the broad reading of the term, pollutant in the CWA, the escaping non-North American origin salmon, the copper used on the sea cages, the fish feed containing poultry parts and carophyll, the medicine given to the fish, and the salmon feces and urine all farll within the definition of pollutant under the Act. Each item constitutes either solid waste, chemical waste, biological materials, or agricultural waste. The court also holds that because these items are put in the water by the farmer as part of its operation and do not naturally occur in the bay, they are additions to the water. The court further holds that because the farms are located in Machias and Pleasant Bays, they are clearly within the boundaries of navigable waters. Additionally, the court holds that the farms are point sources under the CWA,. Although aquatic animal production facilities are nonpoint sources under U.S. Environmental Protection Agency (EPA) regulations, concentrated aquatic animal production facilities (CAAPFs) are point sources and, therefore, prohibited from discharging pollutants without an NPDES permit. The court rejects the farmer's conclusion that the phrase ponds, raceways, or other similar structures in the regulations governing CAAPFs excludes its net pen operations due to their offshore location. The goals of the Act, EPA;s interpretation, and the lack of judicial support to indicate otherwise support the conclusion that a sea cage in a predominantly enclosed bay can constitute a similar structure and, therefore, fall under the regulation. Further, the Act's definition of point source and the case law identifying various point sources do not support the farmer's conclusion that the phrase ponds, raceways, or other similar structures relates only to facilities with discrete discharging pipes or its conclusion that its net pen operations cannot be considered point sources. Instead, the CWA and the case law lead to the conclusion that the release of pollutants from the farmer's pens into the bay constitutes an identifiable, discernible, confined, and discrete emission or conveyance into the water. Therefore, the court holds tha tthe environmental group that filed a citizen suit against the farmer met its summary judgmen burden of demonstrating that the farmer has been and currently is discharging pollutants without an NPDES permit in violation of the CWA. The court next rejects the farmer's affirmative defenses that it is exempt from the zero-discharge standard, that the environmental group's claims are barred by laches, and that the environmental group's claims are barred by equitable estoppel.

The full text of this decision is avaiable from ELR (38 pp., ELR Order No. L-471).

Counsel for Plaintiffs
Bruce M. Merrill
Law Offices of Bruce M. Merrill
225 Commercial St., Ste. 401, Portland ME 04101
(207) 775-3333

Counsel for Defendant
Elizabeth R. Butler
Pierce Atwood
One Monument Square, Portland ME 04101
(207) 773-6411